The impact of the disclosures made by Edward Snowden, the former US intelligence contractor who leaked details of his work for the National Security Agency to the press, has certainly been significant – not only for him but also for the US security agencies and potentially for any nations harbouring the fugitive whistleblower.
Leaving aside the wider questions of national security and the implications for international relations, his experience is useful in highlighting the role of whistleblowing in alerting employers, authorities and sometimes the public to wrongdoing.
The furore over Mr Snowden’s decision to leak to the media details of an alleged secret government surveillance programme coincides with a change to UK law on whistleblowing. As of last Tuesday (June 25) workers in the UK who find it necessary to ‘make a disclosure in the public interest’ will receive greater protection under changes made by the Enterprise and Regulatory Reform Act 2013.
This is likely to have particular significance in sectors such as the oil & gas industry, where the safety of workers and protection of the environment are key considerations.
The focus of the law has moved away from considering whether the disclosure has been made in good faith (i.e. without ulterior motive such as personal gain) to considering whether the disclosure is in the public interest.
No definition of, or guidance on, the public interest test has been provided and so tribunal decisions on this point are anticipated which, it is hoped, will provide greater clarity.
With the 25th anniversary of the Piper Alpha disaster drawing near, the on-going commitment to health and safety is rightly at the forefront of the industry’s collective consciousness. Nonetheless, in the event that a worker were to make a protected disclosure to their employer (or the Health and Safety Executive) they are likely to be protected: to dismiss the worker by reason of having made such a disclosure would be automatically deemed unfair.
With the potential for an unlimited award of damages in such circumstances employers are wise to tread carefully.
It is, however, worth noting that the protection is not absolute – it does not protect a worker from dismissal for other legitimate, unrelated reasons even if they have made a disclosure covered by the legislation .
Given that employers may now also be liable for any acts of victimisation of whistleblowers carried out by their workforce early engagement with workers on this issue is encouraged. Implementing a suitable policy would be a useful first step.
Over and above that, employers should make sure that the policy is well publicised and may also consider holding appropriate training courses to raise awareness of the issue. We have produced a handy guide to changes to whistleblowing legislation, which can be downloaded here.
Eric Gilligan is a partner in the employment team of Brodies LLP, based in its Aberdeen office.
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